December 20th, 2005


McCain: Spineless git

I just took a look at the text of the McCain Amendment Bush agreed to, and the rhetoric coming out of the White House.

McCain, and the press, have been played; the White House got everything it wanted, and more.

The important text is, "it shall be a defense that such officer, employee, member of the Armed Forces or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful."

Now, that's a small thing, for those in the Army. The regulations, presently in place, make it a crime. But the other text makes, even that, negotiable, because § (a) IN GENERAL.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

So all they need to do to make torture legal (sort of, we're still signatories to a couple of pesky treaties which make torture illegal) is add a chapter to FM 34-52. They can even classify it, so no one not in the Army can point to any sanctioned torture. Which would make, "I was only following orders," an absolute defense in an American court, be it civil or military.

And if we doubt that, there's what Hadley said about the amendment, ""The discussion has been less of the text of the McCain amendment as it was originally submitted, and more discussion about the protections for the men and women, both in uniform and civilians, who are engaged in activities involving detainees and interrogations."

So the concern isn't what we do to prisoners, but rather how we protect the people who might be abusing them.

But the services are likely to resist such a change, because it puts people service members at more risk (we won't even go into what I think of such a relaxing, given that as an interrogator I could expect some special forms of payback, no matter what I may personally have done), but, under the Yoo/Gonzales doctrine of the inherent powers of the presidency (see the whole "we don't need no stinkin' warrants to wiretap and read the e-mails of citizens we think might be in touch with terrorists) to set aside such laws as he sees fit, and do whatever he wants in the prosecution of a war (because once Congress authorises force [no need to even go so far as to get a declaration of war] the Prez, can do anything he thinks useful in pursuit of that aim, and the only thing congress can do is cut the funding. The best part is that he doesn't have to tell them what it is, nor from whence the funds come. They wrote him a , mostly-blank, check, and he gets to keep as many sets of books as he likes. It's all for our own good).

Under this principle, "If the president orders in, in time of "war", it's not illegal, then "a reasonable person" could construe the command to torture someone as a lawful order.

This is better than the CIA getting a bye, no everyone gets a bye. Jury nullification as a tenet of the law, and the "ticking bomb" as an article of faith. I can see the summation now:

"Yes, he did a terrible thing (and our hearts go out to Mr. Doe, and his family, it was an honest mistake) but he's not a monster, look at his record. He's an honorable man [yea, they are all honorable men], and had good reason to believe Mr. Doe had knowledge of a plot which was going to kill hundreds, perhaps even thousands. What sort of callous creature would he have been, unfeeling; and unthinking, to not take every available means to try to save those people? His superiors told him the information was crucial, and that he was the only person who could stop it. All he had to do was do what needed to be done to get the information from Mr. Doe"

At which point the college bull-session becomes an article of law. "If you knew killing someone would save the lives of millions, would you do it?" I can see the heated debate in the jury room. Take twelve people, who's only knowledge of interrogation is what they got from 24, Kelly's Heroes, NYPD Blue, and movies with Arnold and Harrison Ford, and I can't guarantee, but I'd be willing to lay a year's salary; at odds, that the best you can hope for as a prosecutor is a hung jury.

"If he has the knowledge would you refuse to torture him, and let all those people die?" is going to be the topic in deliberations. They aren't going to be haggling about the fine points of law, or the mechanics of actually getting useful information. No, it's going to be about babies in coffins and mere hours to save them, no matter what the cost.

There's a story about Sparta. The King of Persia was bearing down on them, and his emmisary has come to negotiate a surrender. He tells the Kings of Sparta, "If His Majesty takes the city by storm His soldiers will rape your women, defile your daughters and kill your sons. Your city willl be torn asunder; not one brick will left atop another and the burnt desolation of it will be the last you see of it as you are led away to slavery."

And the Kings of Sparta looked back at him.


There's a lot of power in that word.


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